Andhra HC (Pre-Telangana)
Padamati Venkata Sundara Rao vs State Of A.P. on 13 February, 2006
Equivalent citations: 2006(1)ALD(CRI)585, 2006CRILJ2168
JUDGMENT M.E.N. Patrudu, J.
1. Prejudice of the accused in criminal trial for non supply of the witness statement is the core question in this appeal.
1.01 Pulukuri Kotayya v. Emperor AIR 1947 PC 67 : 1947 (48) Cri LJ 533 The above landmark pronouncement is the answer.
1.02 It is rightly argued by the learned senior counsel Sri. C. Padmanabha Reddy appearing for the appellant that the above decision is the guiding principle in the Criminal Justice System even by now being relied by Apex Court in the recent Judgments.
1.03 Incidentally several other factual details and the niceties of the procedural and substantive law of crime are also high-lighted by Sri, C. Padmanabha Reddy and indeed they are feast to the ears of the Bench and Bar.
1.04 As usual and as is being happening regularly before this Court, the State represented by the learned Public Prosecutor remained absent. Sri. Ramalingeswara Reddy a learned young colleague of the learned prosecutor represented the respondent State by perusing the Court record during the course of arguments of the case by saying that the State is not assisting the prosecutor either with the case record or with any case law.
1.05 A sorry state of affairs and unnecessary to comment further and advisable to decide the appeal on merits.
2. The appellant is the first accused in S. C. No. 199 of 1998 on the file of the Additional Assistant Sessions Judge, Tenali.
3. IMPUGNED ORDER:
The learned Additional Assistant Sessions Judge by reason of the impugned judgment dated 31-8-1999 convicted the appellant for the offence under Sections 307 and 328, IPC and sentenced him to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 500/- under each count, in default to suffer simple imprisonment for three months under both the counts and further directed that the sentences shall run concurrently and remand period, if any, shall be set off.
4. The appellant is now challenging the legality and correctness of the above judgment.
FACTS:
5. Factual details of the case are:
5.1 The appellant is the son of A-2.
5.2 P.W. 1 is the brother of A-2. All are residents of Yeminenivaripalem.
5.3 There are long pending civil disputes between the two families over Joint house sites and lands.
5.4 A-1 and A-2 the son and the father are accused in the trial, 5.5 The accused developed enmity against P.W. 1 and threatened him with dire consequences.
5.6 The motive for the crime, is the property disputes.
INCIDENT:
5.7 The incident occurred on 10-8-1997 at about 5.00 p.m. near the village.
5.8 It is stated that P.W. 1 intend to sell away the house site to one Addanki Satyanarayana for Rs. 14,000/- and engaged P.W. 5 for surveying the land in order to hand over the same to the proposed purchaser. Accordingly, on 10-8-1997 at about 4.00 p.m., P. Ws. 1. and 5 and the proposed purchaser and others are measuring the site. Noticing the same, both accused and their family members objected to survey and in pursuance of the same there was a quarrel.
5.9 Thereafter, all of them returned to the main road. At about 5.00 p.m., the 2nd accused again picked up a quarrel with P.W. 1 and the first accused picked up a crowbar and dealt a blow on the head of P.W. 1 resulting serious bleeding injury leading to unconsciousness. He fell in pool of blood. Thereafter A-1 attempted to stab P.W. 1 with the same crowbar, but P.W. 2 and P.W.3 rescued him, else P.W. 1 could have received the fatal injury leading to his death.
5.10 P.W. 1 is the victim, P. Ws. 2 to 5 and two others witnessed the attack.
5.11 P.W. 1 was shifted to Government Hospital at Repalle by P.W. 2 and first aid was provided to him by P.W. 9 and later he was referred to Guntur General Hospital and on intimation from the hospital P.W. 10 the police officer proceeded to the hospital and obtained report from P.W.2 as P.W. 1 was still unconscious and was unable to give any statement.
5.12 Police registered the case in Crime No. 28 of 1997 under Sections 324 read with Section 34, IPC, and later the Section of law was altered into 326 and 307 read with Section 34, IPC. P.W. 11 investigated and challaned the accused after following the usual formalities of investigation as envisaged in the Code of Criminal Procedure.
6. TRIAL:
6.1 CHARGES :
There are two charges : The first charge is Under Section 307, IPC against A-1 and A-2 and the other is Under Section 326, IPC against A-1. The accused denied.
WITNESSES & DOCUMENTS :
6.2 Prosecution examined 12 witnesses As P. Ws. 1 to 12 and marked Exs. P-1 to P-14 documents and M. Os. 1 to 5.
The two contradictions are marked for the defence. There are no defence witnesses.
7. ARGUMENTS :
7.1 Sri. C. Padmanabha Reddy, the learned senior counsel made a frontal attack by drawing my attention on various portions of the impugned judgment and stated that the conviction is to be set aside for more than one reason, 7.2 The main grievance ventilated by the learned senior counsel is that the trial Court convicted the first accused under Sections 307 and 326, IPC for the single overt act attributed to him viz., hitting on the head of P.W. 1 with a crowbar and the said conviction is without any reason. It is further argued that there is no injury to P.W. 1 on the chest and the story of attempt to stab on the chest is created to attract the offence Under Section 307, IPC.
7.3 On merits Sri. C. Padmanabha Reddy submitted that P.W. 2 is the maker of the first report and he did not support the contents of Ex. P-1 as he deposed that he does not know the contents of Ex. P-1. Further his evidence discloses that he did not witness the incident hence F.I. R. is to be eliminated, as the maker did not corroborate and he was not declared hostile for contradiction.
7.4 It is also stoutly contended that the investigator admitted in the cross-examination, that he has recorded the statement of P.W. 1 on 18-8-1997 when P.W. 1 was in-patient in the hospital but the said statement is not filed in the Court as such the copy of it is not supplied to the accused and thereby accused are prejudiced and they have no knowledge about the contents of the said statement recorded on 18-8-1997.
7.6 The learned senior counsel has placed strong reliance on other important areas of essential ingredients of the offences alleged.
7.6 It is also stated that only interested witnesses are examined and their evidence needs close scrutiny.
7.7 The learned young counsel representing the prosecution supported the impugned judgment and made his own attempt to resist the arguments of Sri Padmanabha Reddy and submitted that the evidence of P.W. 1, the victim, cannot be brushed aside and his evidence is fully corroborated with the medical evidence and therefore the judgment of the trial Court is justified.
7.8 It is also contended that the two eyewitnesses, P. Ws. 3 and 4 supported the case of the prosecution and merely because they are relatives their evidence cannot be rejected in toto.
8. The points for my decision are :
(1) Whether the appellant attempted to kill P.W. 1 ?
(2) Whether the non-supply of the statement of P.W. 1 is fatal and caused any bias to appellant?
9. POINT No. 1 :
9.1 Section 307, IPC reads as follows :
Attempt to murder :- Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned.
9.2 Close perusal of the Section clarifies that to attract an offence under Section 307, IPC, the Court is expected to carefully examine whether the act irrespective of its result was done with an intention or knowledge and under the circumstances mentioned in the Section. It should be further verified whether the intention or the knowledge of the accused must be such as is necessary to constitute murder. If these ingredients are not established the offence of attempt to murder is not made out.
9.3 The intention is to be gathered from various circumstances and not merely form the consequence that ensures. The prosecution should place and prove all the facts and circumstances as mentioned in Section 300, IPC. Unless it can be said that the intention or knowledge of the accused was to cause such a bodily injury as would come within the scope of Section 300, IPC, the accused cannot be found guilty under Section 307, IPC when there is attempt to cause injury. It must be proved that if the act complained of would have culminated in the death of the victim, the offence would have come within the ingredients as envisaged in Section 300, IPC. Mere giving a blow does not raise an inference of attempt to murder.
9.4 The mens rea required under law has to exist and there must also to exist an effective act to achieve the end of killing. Further, the attempt must be by doing every thing by the accused within his power to achieve the final result. But the final result is not alludes because something beyond his Control intervened.
9.5 To determine whether an act falls within the ambit of Section 307, IPC three conditions are essential are to be examined:
(i) nature of the act done
(ii) the intention or knowledge of the act
(iii) the circumstance under which the act is done.
9.6 To support conviction under Section 307, IPC, it must be proved that the acts intended would cause death and also that the act is, one which is capable of causing death in the ordinary course but death did not eventually ensue for some reason or other.
9.7 While dealing with the offence under Section 307, IPC, the Court has to keep two more points in its mind. One in relation to the intention which preceded to the act and another the actual consequence which follows from the act.
9.8 To prove all the above, the burden is indisputably on the prosecution who affirms the same and the burden must be fully discharged and it should be beyond all reasonable doubt.
9.9 In order to satisfy on the above referred requirements of law, it is necessary to notice the factual matrix in the case. It shall be significant for me to go through the evidence both oral and documentary and the final findings of the impugned judgment.
9.10 Perused the original record.
9.11 EVIDENCE ON RECORD :
P.W. 1 is the victim. P.W. 2 is the first informant.
9.12 In the chief examination P.W. 2 deposed that he gave a report to the police and it is marked as Ex. P-1. P.W. 2 further testified that on 10-8-1997 at about 6.00 p.m., while he was returning from his land a gathering of people reached there and found P.W. 1 in pool of blood in xmconscious condition. Then he took him to the Government Hospital at Repalle where police came and took the report from him.
9.13 Thus the evidence of P.W. 2 is not disclosing that he had witnessed the incident. He deposed that he has seen P.W. 1 in the pool of blood. He has not attributed any overt act to any of the accused. In fact he did not speak about the presence of any of the accused at the time of the offence at the scene of offence. His evidence is totally silent with regard to the alleged acts of the accused.
9.14 In the cross examination, he confirmed that the contents of Ex. P-1 were not read over to him and he signed on Ex. P-1 and he does not know the contents. He was not branded as hostile to prosecution. But his evidence is not supporting the case of the prosecution about the presence or participation of the appellant or the other accused in the offence.
9.15 Therefore, his evidence is not at all useful and with this backdrop the evidentiary value of Ex. P-1 and Ex. P-6 the F. I. R. is to be verified and on verification I hold that their value is zero.
9.16 F. I. R. Much importance attaches to the report of a person who lodges the first information at the police Thana about the commission of crime, as it is the information with regard to the occurrence at the earliest point of time without any scope for embellishments or fabrication. The police officer receiving such report has to observe certain duties and formalities at the time of receiving report. One of the condition relating to recording of first information is, that the police officer whenever reducing the oral report into writing must read over the contents of the report to the informant. The object of F.I.R. is to set the criminal law in to motion or from the point of view of the investigating officer to obtain information about the alleged criminal activity so as to enable to take suitable steps to book the guilty. Therefore, the police must read over the contents of the report to the informant and obtain the signatures of the informant on the report.
9.17 No doubt, Ex. P-1 discloses an endorsement of P.W. 10 who has recorded the report to the affect that the contents of the report are read over to the deponent and admitted by him to be correct. But, P.W. 2 deposes differently.
9.18 In Surjit Singh v. State of Punjab it is clearly held that the evidentiary value of the F. I. R. is to corroborate or contradict the informant and none others.
9.19 In this case the informant contradicted the contents of Ex. P-1 and it was not challenged by prosecution. Therefore, F. I. R. has no value and the prosecution cannot rely on the contents of F. I. R., so also on the evidence of P.W. 2.
9.20 At this stage, it has become necessary to go through the evidence of P.W. 1, the victim. In the chief examination, P.W. 1 deposed that A-1 brought crowbar and beat him on his head causing bleeding injury and he fell down unconscious. His evidence is totally silent about the second attempt of A-1 about stabbing on his chest. Therefore, the evidence of P.W. 1 is also not establishing the case of the prosecution that A-1 made a second attempt to stab P.W. 1 with crowbar on his chest.
9.21 P.W. 3 did not support about the alleged second attempt of A-1. P.W. 3 merely stated that when P.W. 1 fell down, they took him to the Government Hospital at Repalle and from there he was shifted to Guntur Government Hospital.
9.22 P.W. 4, the wife of P.W. 1 for the first time deposed that when P.W.1 fell down, A-1 attempted to poke P.W.1 with crowbar and then P. Ws. 2 and 3 and another person by name Addanki Venkateswara Rao intervened and stopped A-1.
9.23 The most crucial aspect to be noted is neither P.W. 2 nor P.W. 3 deposed about the alleged second attempt of A-1.
9.24 According to P.W. 4 both P. Ws. 2 and 3 intervened and if so P. Ws. 2 and 3 are expected to confirm this fact. But, in this case, the evidence of P. Ws. 2 and 3 is totally silent about the second attempt.
9.25 The independent witness, Addanki Venkateswara Rao was not examined.
Therefore, the uncorroborated testimony of P.W. 4 about the second attempt cannot be accepted as she being the wife of P.W. 1 is undoubtedly interested witness.
9.26 EARLIER THREATS :
The Court below also observed that as A-1 used to threaten P.W. 1 that he would see his end hence he has intention to kill P.W. 1 and in that process A-1 beat P.W. 1.
9.27 The evidence on record is contra. P.W. 1 did not testify this fact either in the chief examination or in the cross examination. When the victim himself is silent on the so called threat or proclamation, it is nothing but absurd for the trial Court to believe the evidence of P.W. 3, who is not a resident of the village of the victim.
9.28 P.W. 3 deposed that A-1 used to threaten P.W. 1. It is an omission. Ex. D-1 is marked from P.W. 3 about the so called threatening of A-1. A material omission is elicited in the form of Ex- D-1 from the evidence of P.W. 3 threatening of A-1 to see the end of P.W. 1. Except P.W. 2, there is no other evidence or record about the so-called threat.
9.29 Thus, I have no hesitation to hold that it is an improvement by P.W. 3 for the first time in the Court and the said fact is marked as Ex. D-1 as a material omission.
9.30 In the instant case even if the entire case of the prosecution is accepted as it is, the incident occurred due to sudden quarrel. It is not the case of the prosecution that A-1 was carrying crowbar.
9.31 The case of the prosecution is very clear that A-1 picked up crowbar suddenly and hit on the head of P.W. 1. There was only one single blow.
9.32 When there was a sudden quarrel and in that process A-1 hit on the head of P.W. 1 by picking up a crowbar, therefore it is not a case attracting the provisions of Section 307, IPC. If the appellant is having intention to kill, he would have completed that act as he was armed with deadly weapon and he can inflict any number of blows to kill P.W. 1. The appellant did not do so.
9.33 Therefore, I hold that on the facts and circumstances of the case the act of the appellant is not attracting the offence under Section 307, IPC.
9.34 Thus the appellant is entitled for acquittal Under Section 307, IPC.
10. POINT NO. 2 :
The evidence of P.W. 1 has clearly established that he has sustained head injury and the appellant beat him with crowbar. The medical evidence is corroborating this fact. Admittedly, P.W. 1 sustained fracture of skull and it is a grievous injury. If the evidence of P.W. 1 is accepted, the appellant used crowbar, which is a dangerous weapon.
10.1 The main contention raised by the learned senior counsel to disbelieve the evidence of P.W. 1 is that the first statement alleged to have been recorded on 18-8-1997 is not produced before the court and thereby the appellant is biased.
10.2 P.W. 1 deposed that he was in coma for one month and he regained consciousness on 26-9-1997. The clear evidence of P.W. 1 is that after he regained consciousness on 26-9-1997 and he was examined by the police on 26-9-1997. While so, P.W. 11, the main investigator stated before the Court that P.W. 1 was examined on 18-8-1997 and he recorded the statement under Section 161, Cr.P.C. Admittedly, the said statement said to have been recorded on 18-8-1997 is not filed in the lower Court. In the cross-examination the investigator further stated that as P.W. 1 was not fully conscious on 18-8-1997, he recorded the statement of P.W. 1 again on 26-9-1997 and the second statement is filed in the Court and the copy of it was given to the accused.
10.3 The investigator admitted that the statement of P.W. 1 recorded by him on 18-8-1997 is not submitted to the Court and he has not mentioned in the General diary or in the Case Diary that he has recorded the statement of P.W. 1 on 18-8-1997. But he deposed that the statement recorded by him on 18-8-1997 is available in the Case diary. He denied the suggestion that he did not record the statement of P.W. 1 on 26-9-1997 in the hospital.
10.4 STATEMENT OF WITNESS :
Chapter XII of the Code of Criminal Procedure deals with the investigative powers of the police.
Under Section 156, Cr.P.C., the police officer investigating any cognizable offence has power to enquire or investigate the case reported to him.
Under Section 160, Cr.P.C., the police officer making an investigation has power to summon any witness, who is acquainted with the facts and circumstances of the case to examine as a witness and under Section 161, Cr.P.C., such statements are to be recorded by the police under Section 162, Cr.P.C.
The scope and application of Section 162, Cr.P.C., lays down specifically the purpose for which the statement is recorded. The sole object is to protect the accused against the over jealous police officers and untruthful witnesses. Section 162, Cr.P.C., intended to serve primarily the interest of the accused on one hand and to some extent to prosecution if the witness do not support the contents of his earlier statement but the statement cannot be used in for corroboration and it is for the purpose of contradiction.
10.5 It is important to bear in mind that under Section 145 of the Evidence Act, the use of previous statements of witness is permissible in the cross-examination and the statement to the police is absolutely banned for all purposes except the one allowed by Section 145 of the Evidence Act.
10.6 Cross-examination of a witness by defence in and Criminal Trial is a valuable right given to accused. Normally and usually the defence would make every attempt to discredit the evidence of a prosecution witness with the aid of their previous statement either by eliciting omissions or contradictions.
At this stage I would like to refer to the judgment in Pulukuri Kotayya v. Emperor 1947 (48) Cri LJ 533 (supra) to which I made a brief reference at the beginning of the judgment.
At para 6 on Section 162 Cr.P.C. is as under :
The right given to an accused person by this section is a very valuable one and often provides important material for cross-examination of the prosecution witnesses. However, slender the material for cross-examination may seem to be, it is difficult to gauge its possible effect. Minor inconsistencies in his several statements may not embarrass a truthful witness, but may cause an untruthful witness to prevaricate, and may lead to the ultimate break-down of the whole of his evidence and in the present case it has to be remembered that the accused's contention was that the prosecution witness were false witnesses. Court in India have always regarded any breach of the proviso to Section 162 as matter of gravity, AIR 1945 Nag. 1 : 1945 (46) Cri LJ 448 (Baliram Tikaram v. Emperor) where the record of statements made by witnesses had been destroyed and 53 All 458 : 1931(32) Cri LJ 562 (Emperor v. Bansidhar) where the Court had refused to supply to the accused copies of statements made by witnesses to the police, afford instances in which failure to comply with the provisions of Section 162 have led to the convictions being quashed. Their Lordships would, however, observe that where, as in those two cases, the statements were never made available to the accused, an inference, which is almost irresistible, arises of prejudice to the accused. In the present case, the statements of the witnesses were made available though too late to be effective, and their contents are known. This by itself might not be decisive, but as already noted, the Circle Inspector re-examined the witnesses whom the police Sub-Inspector had examined and did so on the same day. The notes of the examination by the Circle Inspector were made available to the accused at the earliest opportunity, and when the note book of the police Sub-Inspector was produced towards the end of the prosecution cage, counsel for the accused was in a position to ascertain whether there was any inconsistency between the statements made to the police Sub-Inspector and those made later in the day to the Circle Inspector. If any such inconsistency had been discovered, this would have been a strong point for the accused in their appeal, but no such point was taken; indeed, the only complaint upon this subject in the High Court was that the police Sub-Inspector ought to be presumed to have prepared a case diary which he was suppressing. The High Court rejected this contention, rightly as their Lordships think. Nor has any such point been taken before this Board, and the entries from the Circle Inspector's diary are not on record. In the result, their Lordships are satisfied that, in the peculiar circumstances of this case, no prejudice was occasioned to the accused by the failure to produce in proper time the note-book of the police Sub-Inspector.
Again at para 7, his Lordship Sir John Beaumont is pleased to observe as follows :
When a trial is conducted in a manner different from that prescribed by the Code as in 28 I. A. 257 (Subrahmania Aiyar v. Emperor), the trial is bad, and no question of curing an irregularity arises; but if the trial is conducted substantially in the manner prescribed by the Code, but some irregularity occurs in the course of such conduct, the irregularity can be cured under Section 537, and none the less so because the irregularity involves, as must nearly always be the case, a breach of one or more of the very comprehensive provisions of the Code. The distinction drawn to many of the cases in India between an illegality and an irregularity is one of degree rather than of kind. This view finds support in the decision of their Lordships' Board in 5 Rang. 53 : AIR 1927 PC 44 (Abdul Rahman v. Emperor), where failure to comply with Section 360, Criminal P. C., was held to be cured by Sections 535 and 537, The present case falls under Section 537, and their Lordships hold the trial valid notwithstanding the breach of Section 162.
10.7 Now let us look into the undisputed facts in this case.
P.W. 1 has clearly stated that the police have examined him after he regained con-sciousness and his statement was recorded. According to him he regained consciousness on 26-9-1997. P.W. 11, the investigator also says that he examined P.W. 1 after he regained consciousness. The evidence of P.W. 1 that he was examined by police on 18-8-1997 and his statement was recorded on 188-1997. P.W. 11 is the only witness who has stated that P.W. 1 was examined on 18-8-1997 while he was inpatient in the hospital and his statement was recorded under Section 161, Cr.P.C.
10.8 The investigating officer can examine any witness on any number of occasions. But when he reduces the said statement into writing, he shall make a separate and true record of the statement and it should be supplied to the Court and to the accused.
10.9 In the instant case, P.W. 11 deposed with certainty that the statement of P.W. 1 recorded by him on 18-8-1997 is available in the Case Diary and the fact is that the said statement is not filed in the Court or copy of it is not supplied to the accused.
10.10 Under Section 173(5)(b), (6) and (7), Cr.P.C., the police shall have to forward the statement of witness to the Magistrate along with the charge sheet and under Section 207 or 209, Cr.P.C., as the case may be, the Court will furnish copies of all documents including the statements of witness to the accused free of cost.
10.11 In the instant case, P.W. 11 admitted that he did not file the statement of P.W. 1 recorded on 18-8-1997 in the Court.
10.12 When more than one statement of the witness has been recorded, the accused is normally entitled to get the copies of all such statements and this right of the accused cannot be whittled down merely by supplying a copy of one statement.
10.13 When copies of statement of witnesses recorded and not supplied to the accused, it cannot be said to be proper compliance of provisions of Sections 173(3), 207 or 209 and 162, Cr.P.C.
10.14 The right of cross-examination of any version of the witness with reference to his statement recorded under Section 161, Cr.P.C., is indefensible right and cannot be circumvented in any manner, 10.15 Where the accused has been deprived of the right of effective cross-examination of the prosecution witnesses for want of copy of the statement recorded under Section 181, Cr.P.C., it is Impossible to say that there has not been failure of Justice.
10.16 However, the infringement of the said act is curable under Section 465, Cr.P.C., if it is not occasioned any failure of justice.
10.17 Thus the main concern of the Court of law is to focus its attention on two concepts :
(a) Interest of Justice
(b) failure of justice 10.18 In this case, the second statement of P.W. 1 was supplied to the accused. Therefore, it is not the case of non-supply of any of the statement of the witness. The earlier statement said to have been recorded by the investigator is not supplied, 10.19 In my considered opinion the unavailability of the first statement does not necessarily make the trial bad when the subsequent statement recorded under Section 161, Cr.P.C., is supplied to the accused and the fact of bias is not canvassed by accused at the earliest point of time viz., during the trial moreso, soon after the examination of P.W. 11 and before the closure of prosecution witness. Further the accused proceeded with cross-examination of P.W. 1 with the aid of his statement.
10.20 So I hold that no prejudice has been caused to the accused and even if there is an irregularity it is essentially curable under Section 465, Cr.P.C. In the case on hand, the main statement of P.W.1 was suppiled. The alleged first statement is deposed by P.W. 11 is not supplied and even according to P.W. 11 the witness was semi-conscious at the time of recording first statement. In my considered opinion the unavailability of one statement does not vitiate the trial itself as the second statement is filed.
10.21 I would make myself clear that such act may according to circumstances need serious consequence extending invalidation of the trial. Destruction or suppression of the statement or refusal to supply copies or withheld such statements on the ground that they are ruining the case of the prosecution will undoubtedly lead to quashing of the convictions. The wholesale refusal to supply of the statement will undoubtedly, lead to serious illegality.
10.22 Sri C. Padmanabha Reddy has fairly assisted the Court by arguing that in a case of this nature the consequence of unavailability of the statement of P.W. 1 will at least make the evidence of such witness P.W.1, inadmissible because the copy of the statement the only material for his cross-examination its unavailability at the time of trial and it would lead to serious infirmity hence ignore the evidence of P.W. 1 altogether.
10.23 When there is a destruction or suppression of the statement and if it is deliberate, I have no hesitation to hold that the evidence of P.W. 1 is to be rejected in toto and it is not a case of wholesale refusal to supply the statement of P.W. 1.
Tilkeswar Singh v. State of Bihar .
The Supreme Court clearly held that unavailability of the statement of the witness does not render the evidence Inadmissible. Therefore the provisions relating to the supply of copies is undoubtedly a great importance, but the approach thereof must be considered in the light of the prejudice caused to the accused.
10.24 Considering the same, I am of the view that the evidence of P.W. 1 requires close scrutiny and after a close perusal I am of the opinion that the appellant is not prejudiced for the non-availability of the earlier statement and in fact the evidence of P.W. 1 clearly discloses that the defence elicited certain facts from P.W. 1 on the basis of his earlier statement.
10.25 In the light of the above observation, I am of the opinion that there is no prejudice to the appellant for non -supply of the statement and even if it is there it is to very limited extent and the same is curable under Section 465, Cr.P.C.
10.26 The extent of failure of justice by non-supplying a copy of the first statement is not made clear, on the other the interest of justice to protect the truth has taken the driver seat in this case pushing the failure of justice to dickey.
10.27 Naturally, superior Court will not interfere unless there has actually been a failure of Justice. The Supreme Court in several cases held that whether it is illegal or irregular or infraction of any other provision of the Code, it must be established that there is a failure of justice and in fact it has been occasioned because of the Illegality or irregularity.
10.28 For the foregoing reasons. I do not find much force in the arguments of the learned Counsel for the appellant to discard the evidence of P.W.1.
11.00 EVIDENCE FOR CONVICTION Under Section 326. IPC :
11.01 Even if the evidence of P.W.I is to be kept aside, even then we have the evidence of P.Ws. 3 and 4, who spoke about the incident. No doubt P.Ws. 3 and 4 are blood relatives of P.W. 1. It is not a ground to reject their evidence in totality. It requires scrutiny.
11.02 According to P.W.2 there was an incident and P.W. 1 sustained injury on his head. It is P.W.2 who has shifted P.W.1 to the hospital. It is P.W.9 the doctor who has examined P.W. 1. Thus the record discloses that P.W. 1 was admitted in the hospital and got treatment.
11.03 Therefore, one important circumstance about the occurrence of incident and injury was established through the evidence of P.Ws. 2 and 9.
11.04 P.Ws. 3 and 4 narrated how the incident occurred.
11.05 In view of clear and cogent evidence of P.Ws. 1 to 4 and the medical evidence, I am of the opinion that the act attributed to the appellant is clearly attracting the provisions of Section 326, IPC.
11.06 Hence, the impugned judgment with regard to the conviction under Section 326, IPC need not be disturbed.
12.00 SENTENCE AND RESULT :
On sentence I am of the opinion that the imposing of sentence of ten years is harsh.
12.01 In a sudden quarrel the incident in this case occurred. There is only one blow. Thus the sentence of ten years needs to be altered.
12.02 It is true that punishment provided under Section 326, IPC is imprisonment for life. But the Code commands the Judicial First Class Magistrate to try such offences and admittedly the sentencing power of the Judicial First Class Magistrate under Section 29(2), Cr.P.C., is limited for a term not exceeding three years, or of fine not exceeding five thousand rupees, or of both. Therefore, the legislature in its wisdom has ordered the Court of Judicial First Class Magistrate to try offences under Section 326, IPC and in the rarest of rare cases such Magistrate is required to address the superior Court for imposing higher punishment under Section 326, IPC.
12.03 Considering the totality of circumstances I am of the opinion that the ends of justice would meet by imposing sentence of two years and a fine of Rs. 5,000/-. The entire fine amount is directed to be paid to P.W.1, the victim in this case as compensation under Section 357, Cr.P.C.
12.04 In view of the aforesaid discussion, the appeal is allowed in part and the conviction of the appellant under Section 307, IPC is set aside and the conviction under Section 326, IPC is confirmed and the sentence is reduced to two years with fine of Rs. 5000/-. The entire fine amount is directed to be paid to P.W. 1 under Section 357, Cr.P.C.
In the result the appeal is allowed in part.